Present: Kinser, C.J., Goodwyn, Millette, Mims, McClanahan, and Powell, JJ., and Koontz, S.J.
BOARD OF SUPERVISORS OF JAMES CITY COUNTY, ET AL. OPINION BY v. Record No. 130210 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR. January 10, 2014 WINDMILL MEADOWS, LLC, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND JAMES CITY COUNTY Robert W. Curran, Judge Designate
In this appeal, we address the construction and
application of a statute by a circuit court in ruling upon
cross-motions for summary judgment in a declaratory judgment
action. In such cases, we review de novo both the
construction of the relevant statute, Newberry Station
Homeowners Ass'n v. Bd. of Supervisors, 285 Va. 604, 611, 740
S.E.2d 548, 552 (2013), and its application to the undisputed
facts stipulated in the record. Elizabeth River Crossings
OPCO, LLC v. Meeks, 286 Va. 286, 301, 749 S.E.2d 176, 183
(2013); Transportation Insurance Co. v. Womack, 284 Va. 563,
567, 733 S.E.2d 656, 658 (2012).
BACKGROUND
Windmill Meadows, LLC, HHHunt Corporation, and GS
Stonehouse Green Land Sub LLC ("the developers") are all
owners of land within James City County on which they are
developing residential communities. At various times prior to July 1, 2010 the developers sought and obtained rezoning of
their property to allow for their planned developments. As
part of their applications for rezoning, the developers all
made proffers to the County which included per-dwelling unit
cash payments during different stages of development.
Likewise, Williamsburg Landing, Inc., a non-profit
corporation developing a life care community in the County,
agreed to make per-dwelling unit cash payments related to the
rezoning of its property. Though the terms of these proffers
differed, as relevant to this appeal it is not contested that
these cash payments were required to be made prior to the date
of the completion of the final inspection and the issuance of
a certificate of occupancy for each dwelling unit.
In the 2010 legislative session, the General Assembly
enacted Code § 15.2-2303.1:1(A), which in relevant part
provides, "Notwithstanding the provisions of any cash proffer
requested, offered, or accepted . . . for residential
construction on a per-dwelling unit or per-home basis, cash
payment made pursuant to such a cash proffer shall be
collected or accepted by any locality only after completion of
the final inspection and prior to the time of the issuance of
any certificate of occupancy for the subject property." The
statute went into effect on July 1, 2010 and, under a "sunset
2 provision" was to remain in effect until July 1, 2014. 1 See
2010 Acts chs. 549, 613.
On September 13, 2010, in response to an inquiry from a
member of the General Assembly, the Attorney General issued an
opinion addressing whether Code § 15.2-2303.1:1(A) "applies to
proffer agreements that were formed prior to July 1, 2010."
2010 Op. Atty. Gen. 65 at 1. The Attorney General opined that
"to the extent the Act does not impair the contract or vested
rights of the zoning applicant, . . . Code § 15.2-2303.1:1
applies to cash payment proffers formed before July 1, 2010 so
that a locality may not accept or demand payment of any
uncollected cash proffer payments until the completion of a
final inspection and prior to the issuance of a certificate of
occupancy for the subject property." Id. at 4 (emphasis
added).
Although the parties were all aware of the enactment of
Code § 15.2-2303.1:1(A) and the Attorney General's opinion as
to its application, it is not disputed that cash payments for
1 As initially enacted, Code § 15.2-2303.1:1 had two subsections numbered 1 and 2. Subsequent amendments to Code § 15.2-2303.1:1 added two additional subsections and redesignated them as A, B, C, and D. See 2011 Acts ch. 173; 2012 Acts chs. 508, 798. For clarity, we will refer to the subsections by their current designations. Among other changes, the amendments have twice extended the sunset provision date, which at present is July 1, 2017. Code § 15.2-2303.1:1(D).
3 some dwelling units were made by the developers and
Williamsburg Landing and accepted by the County in accord with
the terms of the proffers after June 30, 2010 and prior to the
completion of a final inspection of the dwelling units. This
practice continued until May 18, 2011, when the County
Attorney received a letter from Robert Duckett, Director of
Public Affairs for the Peninsula Housing & Builders
Association, a trade group representing the developers.
Duckett questioned the County's practice of accepting the
proffers in advance of the time specified in the statute,
indicating that the Association believed that the County was
required to "revise its proffer acceptance policy and
practices to bring them in accordance with [Code §]
15.2-2303.1:1."
On June 30, 2011, the County, on behalf of its Board of
Supervisors and the County's acting Zoning Administrator,
filed a complaint for declaratory judgment in the Circuit
Court of the City of Williamsburg and James City County,
naming the developers and Williamsburg Landing as respondents. 2
Within the complaint, the County contended that Code
2 Basic Properties, LLC, another developer of land within the County, was also named as a respondent, but did not enter an appearance in the circuit court and is not a party to this appeal. The Home Builders Association of Virginia subsequently was permitted to intervene in the action as a respondent.
4 § 15.2-2303.1:1(A) had no application to proffers agreed to
prior to its effective date of July 1, 2010. The County asked
the court to determine that the statute "applied prospectively
and has no retroactive effect."
On July 25, 2011, Williamsburg Landing filed an answer to
the County's complaint. Admitting the basic facts as alleged
in the complaint, Williamsburg Landing contested the County's
legal argument and conclusion that Code § 15.2-2303.1:1(A) did
not affect the County's ability to accept cash proffers prior
to the completion of a final inspection. Williamsburg Landing
requested that the circuit court "enter such Orders as may be
proper based on the Court's determination of the matters
raised in the Petition, and that [Williamsburg Landing] be
awarded its attorney[']s fees and costs."
On August 25, 2011, the developers filed a joint answer
to the County's complaint contesting the County's position and
requesting that the circuit court declare that:
Va. Code § 15.2-2303.1:1 is to be applied retroactively and thus to any and all cash payments owed pursuant to any and all cash proffers requested, offered or accepted for residential construction on a per-dwelling unit or per-home basis during its period of effectiveness and that Respondents are to be awarded reasonable attorney['s] fees, expenses and court costs in addition to the refund of any and all monies collected or accepted by Petitioners in violation of § 15.2-2303.1:1 of the Code, plus interest, as set forth in Respondents' Counterclaim filed contemporaneously with this Answer.
5 As indicated in their answer, the developers also filed a
counterclaim on August 26, 2011 seeking "the refund of any and
all monies accepted or collected by the County in violation of
[Code] § 15.2-2303.1:1" and attorney's fees and costs. The
claim for fees and costs was based upon an amendment to Code
§ 15.2-2303.1:1 effective July 1, 2011 which permits a court
to "award reasonable attorney fees, expenses, and court costs
. . . in an action successfully challenging an ordinance,
administrative or other action as being in conflict with this
section." See 2011 Acts ch. 173 (enacting former subsection
(B) of the statute); see also current Code § 15.2-2303.1:1(C).
On December 1, 2011, the County filed its answer to the
developer's counterclaim requesting that it be denied and that
the court grant the relief sought by the County in its
complaint for declaratory judgment.
The County, Williamsburg Landing, and the developers all
filed cross-motions for summary judgment and supporting
briefs. The arguments raised by the parties therein are
substantially parallel to those made on brief in this appeal.
It will suffice to say that the parties focused their
arguments upon whether the language of Code § 15.2-2303.1:1(A)
evinced a legislative intent that the statute would be
"applied retroactively" to limit the acceptance or demand for
6 payment of cash proffers agreed to and adopted prior to the
effective date of the statute.
Following consideration of the briefs and arguments of
the parties, the circuit court entered an interlocutory order
dated April 11, 2012 in which it ruled that:
Code § 15.2-2303.1:1 is to be applied to any and all cash payments owed pursuant to any and all cash proffers requested, offered, or accepted for residential construction on a per-dwelling unit or per-home basis, notwithstanding whether such proffered payments were agreed to prior to or after the effective date of that statute.
The court further ruled that "the county violated applicable
law by collecting the cash proffers at issue . . . prior to
final inspection." Accordingly, the court denied the County's
motion for summary judgment, granted summary judgment for the
developers and Williamsburg Landing on the County's complaint
for declaratory judgment, and granted judgment for the
developers on their counterclaim. The court continued the
matter to determine whether to award attorney's fees to the
developers and Williamsburg Landing.
On October 31, 2012, the circuit court entered a final
order of judgment awarding attorney's fees and costs to the
developers and Williamsburg Landing. The County objected to
the awards on the ground that Code § 15.2-2303.1:1(C) did not
provide for an award of attorney's fees for successfully
responding to a complaint for declaratory judgment. The
7 County further objected that the developers' "redundant
Counterclaim" also did not warrant such an award because the
cash proffers had been voluntarily paid, and even if it did,
Williamsburg Landing had not filed a counterclaim and, thus,
would not be entitled to attorney's fees.
We awarded the County this appeal.
DISCUSSION
The County's first assignment of error reads:
The circuit court erred in determining that Va. Code § 15.2-2303.1:1 is to be applied retroactively, despite the absence of any statement of retroactivity contained within Chapters 549 and 613 of the 2010 Acts of Assembly, without any evidence or witness testimony to rebut the long-standing presumption against retroactive laws, and without reconciling statutes in determining retroactivity.
The County, citing Berner v. Mills, 265 Va. 408, 413, 579
S.E.2d 159, 161 (2003), contends "that retroactive laws are
not favored and that a statute is always construed to operate
prospectively unless a contrary legislative intent is
manifest." Because the language of Code § 15.2-2303.1:1 does
not contain a "clear, explicit, or unequivocal" statement of
its retroactive application, the County maintains that its
plain language required the circuit court to find that it did
not apply to proffers agreed to prior to its effective date.
The County further contends that the legislature could
not have intended for Code § 15.2-2303.1:1(A) to apply to cash
8 proffers agreed to prior to its effective date because this
would conflict with other statutory provisions regarding
proffers. Specifically, the County notes that Code
§ 15.2-2303.3(A) permits zoning petitioners to agree to pay
cash proffers in advance of the issuance of a building permit
and provides for a cause of action against a petitioner or
successor who fails to ensure payment was made in accord with
the proffer. If no cash proffer could be collected prior to a
final inspection, the County contends that Code § 15.2-2303.3
would be rendered meaningless.
The developers and Williamsburg Landing respond that the
language of Code § 15.2-2303.1:1(A), when properly construed,
applies to "any cash proffer" due after June 30, 2010,
including those called for in proffers accepted prior to the
statute's effective date. They contend that even if the
language of the statute is not plain and unambiguous, the
circuit court's construction of that language would
nonetheless be correct because it is consistent with the
opinion of the Attorney General on the statute's application,
and in accord with this Court's prior interpretation of the
contextual use of "any" in the statute at issue in Sussex
Community Services Association v. Virginia Society for
Mentally Retarded Children, Inc., 251 Va. 240, 467 S.E.2d 468
(1996). We agree.
9 "When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute."
Commonwealth v. Leone, 286 Va. 147, 150, 747 S.E.2d 809, 811
(2013)(quoting Conyers v. Martial Arts World of Richmond,
Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)). "'[W]hen
the legislature has used words of a clear and definite
meaning, the courts cannot place on them a construction that
amounts to holding that the legislature did not intend what it
actually has expressed.'" Paugh v. Henrico Area Mental Health
& Developmental Servs., 286 Va. 85, 89, 743 S.E.2d 277, 279
(2013)(quoting Hubbard v. Henrico Ltd. P'ship, 255 Va. 335,
339, 497 S.E.2d 335, 337 (1998)).
The County is correct that in Berner we stated that it is
a "fundamental principle[] of statutory construction that
retroactive laws are not favored, and that a statute is always
construed to operate prospectively unless a contrary
legislative intent is manifest." Berner, 265 Va. at 413, 579
S.E.2d at 161; see also Adams v. Alliant Techsystems, Inc.,
261 Va. 594, 599, 544 S.E.2d 354, 356 (2001); McIntosh v.
Commonwealth, 213 Va. 330, 331-32, 191 S.E.2d 791, 792 (1972).
Moreover, Code § 1-239, formerly Code § 1-16, provides that
10 "[n]o new act of the General Assembly shall be construed to
repeal a former law, as to . . . any right accrued, or claim
arising under the former law, or in any way whatever to affect
. . . any right accrued, or claim arising . . . before the new
act of the General Assembly takes effect." See also City of
Norfolk v. Kohler, 234 Va. 341, 345, 362 S.E.2d 894, 896
(1987); Va. Const. art. I, § 11 ("the General Assembly shall
not pass any law impairing the obligation of contracts.").
That having been said, this Court has never required that
the General Assembly use any specific form of words to
indicate that a new statute or amendment to an existing
statute is intended to be applied retroactively. Sussex
Community Services, 251 Va. at 245, 467 S.E.2d at 470; see
also Hagen v. Hagen, 205 Va. 791, 796, 139 S.E.2d 821, 824
(1965). Rather, we look to the context of the language used
by the legislature to determine if it "'shows it was intended
to apply retroactively and prospectively.'" Buenson Div.,
Aeronca, Inc. v. McCauley, 221 Va. 430, 433, 270 S.E.2d 734,
736 (1980)(quoting Allen v. Mottley Construction Co., 160 Va.
875, 889, 170 S.E. 412, 417 (1933)).
Thus, in Sussex Community Services we concluded that the
term "any restrictive covenant" in Code § 36-96.6(C), which
had been added to the statute by amendment in 1991, applied
retroactively to restrictive covenants recorded before the
11 effective date of the amendment. 251 Va. at 244-45, 467
S.E.2d at 470. Applying a similar analysis to the relevant
language of Code § 15.2-2303.1:1(A), it is clear that in the
overall context of the statute the legislature intended to
limit the time for payment of cash proffers to the period
following a final inspection and before the issuance of a
certificate of occupancy "[n]otwithstanding the provisions of
any cash proffer requested, offered, or accepted." (Emphasis
added.) The plain meaning of this language clearly indicates
that even if an existing cash proffer already agreed to, but
not yet due on the effective date of the statute, requires a
payment to a locality before the completion of a final
inspection, the new statute would apply, "[n]otwithstanding"
that requirement, to delay the authority of the locality to
demand or accept payment until after the final inspection of a
subject unit is completed.
The Attorney General recognized, consistent with Code
§ 1-239 and Article 1, Section 11 of the Constitution of
Virginia that Code § 15.2-2303.1:1(A) could not be applied so
as to "impair the contract or vested rights of the zoning
applicant" if, for example, a previously agreed to proffer
required a payment to be made after the issuance of a
certificate of occupancy. 2010 Op. Atty. Gen. 65 at 4. By
way of contrast, the County cannot claim that Code
12 § 15.2-2303.1:1(A) has divested it of a contact right to
collect cash proffers prior to completing a final inspection
because, as the Attorney General noted, the rule disfavoring
retroactive application of statutes that is embodied in Code §
1-239 and Article 1, Section 11 "operates to protect private
parties from the government." 2010 Op. Atty. Gen. 65 at 3;
see also City of Portsmouth v. Virginia Ry. & Power Co., 141
Va. 44, 46-47, 126 S.E. 366, 367 (1925)(operation of
comparable federal provision). The authority of the County to
enforce zoning proffers devolves from the state, and it is
certainly within the power of the state to modify or withdraw
such power if it sees fit to do so. Virginia Ry. & Power Co.,
141 Va. at 50, 126 S.E. at 368.
The circuit court's order likewise reflects its
understanding that "Code § 15.2-2303.1:1 is to be applied to
any and all cash payments owed" to a locality under a zoning
proffer "notwithstanding whether such proffered payments were
agreed to prior to or after the effective date of that
statute." Contrary to the position taken by the County, the
circuit court's construction of the statute does not alter
"retroactively" the proffers agreed to by the developers and
Williamsburg Landing, rather it acts to limit the time during
which the County can demand or accept payments under those
proffers.
13 We also do not agree with the County that there is any
conflict between Code § 15.2-2303.1:1(A) and Code
§ 15.2-2303.3. There is no conflict between the two statutes
when the legislative intent underlying Code § 15.2-2303.1:1(A)
is properly recognized as expressing a limitation only on when
a locality may require or accept the payment of cash proffers.
Nothing in Code § 15.2-2303.1:1(A) prohibits zoning applicants
from offering different terms, which might be subject to
enforcement if and when the sunset provision of Code
§ 15.2-2303.1:1(D) becomes effective, consistent with Code §
15.2-2303.3. Nor does Code § 15.2-2303.3 prohibit a locality
from undertaking an action to enforce a cash proffer, provided
that the right of the locality to demand payment of the
proffer has accrued under the terms of the proffer and Code §
15.2-2303.1:1(A) while it is in effect.
For these reasons, we hold that the circuit court did not
err in concluding that payments of cash proffers owed to a
locality under rezoning agreements adopted prior to July 1,
2010 were nonetheless subject to Code § 15.2-2303.1:1(A) for
the purpose of determining when the locality's right to
receive or accept the payment would accrue. Accordingly, we
will affirm the judgment of the circuit court denying the
County's motion for summary judgment and granting summary
14 judgment to the developers and Williamsburg Landing on the
County's complaint for declaratory judgment.
We now turn to the issue raised in the County's second
assignment of error asserting that the circuit court erred in
awarding attorney's fees to any of the respondents under Code
§ 15.2-2303.1:1(C). This Code section became effective on
July 1, 2011, and provides that:
[i]n addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action successfully challenging an ordinance, administrative or other action as being in conflict with this section.
Initially, we note that the County has not asserted on
appeal, as it did below, that Code § 15.2-2303.1:1(C) is
inapplicable to this case because the complaint for
declaratory judgment was filed one day prior to the effective
date of that amendment to the statute. We further note that
neither the developers nor Williamsburg Landing alleged in the
proceedings in the circuit court that any County ordinance was
in violation of the statute. Thus, the issue becomes whether
either of these parties "successfully challeng[ed] an . . .
administrative or other action" of the County that was in
conflict with Code § 15.2-2303.1:1.
During oral argument of this appeal, counsel for
Williamsburg Landing conceded that in responding to the
15 County's complaint for declaratory judgment, it did not
challenge the County's acceptance of any cash proffers from
Williamsburg Landing, nor did it file a counterclaim
challenging that action or otherwise seek any relief apart
from a favorable ruling in the declaratory judgment action
with respect to the circuit court's interpretation of Code
§ 15.2-2303.1:1(A). Accordingly, it is patent that
Williamsburg Landing did not successfully challenge an
administrative or other action of the County as contemplated
by Code § 15.2-2303.1:1(C) in the proceedings in the circuit
court, and we hold that the court thus erred in awarding
attorney's fees and costs to Williamsburg Landing.
With respect to the attorney's fees awarded to the
developers, the County contends that Code § 15.2-2303.1:1(C)
has no application to a declaratory judgment action, and that
attorney's fees and costs generally are not available to a
prevailing party in such actions. The County further contends
that the circuit court erred in awarding attorney's fees to
the developers under their counterclaim because there is no
evidence that the County took any administrative or other
action in conflict with Code § 15.2-2303.1:1. Thus, the
County maintains that its acceptance of voluntary cash
proffers by the developers after July 1, 2010 did not
16 constitute an "action" which the developers successfully
challenged in the proceedings in the circuit court.
The developers respond that their counterclaim expressly
challenged the "action" of the County in accepting cash
proffers prior to the completion of a final inspection of the
subject dwelling units. Because Code § 15.2-2303.1:1(A)
expressly forbids the County from accepting payments under the
proffers prior to the time specified, the developers maintain
that the circuit court correctly recognized that the
developers prevailed on their counterclaim and, thus, were
entitled to recover attorney's fees and costs under Code
§ 15.2-2303.1:1(C). We agree.
"The purpose of a declaratory judgment proceeding is the
adjudication of rights" between the parties as to "an actual
controversy." Charlottesville Area Fitness Club Operators
Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87, 98,
737 S.E.2d 1, 6 (2013). The plain language of the Declaratory
Judgment Act, Code § 8.01-184 et seq., "does not authorize a
court to make an award of attorney's fees" to a prevailing
party. Russell County Department of Social Services. v.
O'Quinn, 259 Va. 139, 142, 523 S.E.2d 492, 493 (2000).
Nonetheless, in some instances an award of attorney's fees may
be proper in an action seeking declaratory relief if such an
award is authorized by another statute or contract implicated
17 in the action. See. e.g., Mozley v. Prestwould Board of
Directors, 264 Va. 549, 555-56, 570 S.E.2d 817, 821 (2002).
In order for a court to award attorney's fees in such cases,
the party seeking the award must show that the statute or
contract that authorizes such awards is applicable to the
judgment obtained.
Mozley is instructive on the circumstances under which a
party to a declaratory judgment action may be entitled to an
award of attorney's fees provided for by a statute implicated
in the action. In Mozley, a condominium owner had sought to
challenge by a declaratory judgment action an assessment of
the costs of repairs to exterior windows of other units on the
ground that these repairs did not involve "limited common
elements" under the Virginia Condominium Act, Code § 55-79.39
et seq. Id. at 551-52, 570 S.E.2d at 819. In affirming the
trial court's award of attorney's fees in favor of the
condominium board, we held that Code § 55-79.53(A) provided
for such an award in any litigation related to disputes
concerning "any claims or actions related to the common
elements." Id. at 555-56, 570 S.E.2d at 821. We concluded
that the board was entitled to the award notwithstanding the
fact that Mozley "paid the full amount assessed . . . without
requiring the board to obtain a judgment against her."
18 In the present case, in both their answer to the
declaratory judgment action and their counterclaim, the
developers asserted that they were entitled "to the refund of
any and all monies collected or accepted by the County in
violation of Code § 15.2-2303.1:1." (Emphasis added.)
Although the circuit court's interlocutory order of April 11,
2012 sustaining the developers' motion for summary judgment
made no award to the developers for a refund of cash proffers,
it nonetheless found that "the County violated applicable law
by collecting the cash proffers at issue . . . prior to final
inspection." More significantly, the October 31, 2012 final
order expressly provides that "[t]he foregoing [judgment] is
without prejudice to the rights of any party hereto to seek
further relief in this case or in any other case based on the
rulings made by th[is] Court in this order."
Although the County concedes that it accepted cash
payments of proffers on individual dwelling units prior to the
completion of a final inspection from the developers after
June 30, 2010, it nonetheless contends that there is a "total
absence of any evidence or testimony challenging a County
ordinance, administrative, or other action as [being] in
conflict with Va. Code § 15.2-2303.1:1." This is so, the
County maintains, because acceptance of these "voluntary"
19 payments from the developers did not constitute an "action" on
the part of the County. We disagree.
Unlike Williamsburg Landing, which concedes that it
challenged only the County's request for a declaratory
judgment construing Code § 15.2-2303.1:1(A) to permit it to
continue accepting cash payments prior to the completion of a
final inspection of a dwelling unit, in both their answer and
counterclaim the developers expressly challenged the County's
action in having accepted such payments between July 1, 2010
and May 18, 2011. The language of Code § 15.2-2303.1:1(A)
unambiguously provides that after June 30, 2010 cash proffers
"shall be collected or accepted by any locality only after
completion of the final inspection." (Emphasis added.) The
plain meaning of "collected or accepted" is that the statute
applies to all such payments without regard to whether they
are "collected" by demand of the locality or "accepted" by
voluntary payment of the property owner. Although the record
on summary judgment does not establish what refunds, if any,
the developers would be entitled to seek, the record
adequately supports the conclusion that the developers
prevailed in their challenge to the County's action of
20 accepting payments in violation of the statute. 3 Accordingly,
we hold that the circuit court did not err in awarding
attorney's fees and costs to the developers under Code
§ 15.2-2303.1:1(C).
CONCLUSION
In summary, we hold that the circuit court did not err in
ruling that Code § 15.2-2303.1:1(A) applies to all payments of
cash proffers due on or after July 1, 2010 regardless of
whether the proffers were agreed to prior to that date. We
further hold that the court did not err in awarding attorney's
fees and costs to the developers, but that the award of
attorney's fees and costs to Williamsburg Landing was error in
that Williamsburg Landing's response to the County's complaint
for declaratory judgment did not constitute a successful
challenge to an administrative or other action of the County.
Accordingly, the circuit court's judgment will be
affirmed in part, reversed in part, and the case will be
3 We recognize the likelihood that payments made by the developers and accepted by the County between July 1, 2010 and May 18, 2011 subsequently became due under Code § 15.2-2303.1:1(A) during the pendency of this action when final inspections of the dwelling units were completed. However, just as in Mozley, the issue is not whether the party obtained a monetary judgment in addition to a favorable ruling on the declaratory action, but rather whether the record shows that the party prevailed on a claim implicated by the statute providing for an award of attorney's fees. See 264 Va. at 555-56, 570 S.E.2d at 820-21.
21 remanded for further proceedings to determine whether the
developers are entitled to a further award of attorney's fees
and expenses for this appeal.
Affirmed in part, reversed in part, and remanded.